Mandate 'shell game'? Obama contraception battle far from over

This is a rush transcript from "On the Record," February 24, 2012. This copy may not be in its final form and may be updated.

GRETA VAN SUSTEREN, FOX NEWS HOST: Tonight, President Obama has some very unhappy states. The new blow-up is over birth control and insurance coverage. Seven states are now taking the Obama administration to court. They're suing to block the HHS contraception mandate, the attorneys general of Texas, Florida, Michigan, Nebraska, Ohio, Oklahoma and South Carolina all filing the lawsuit. Texas attorney general Greg Abbott calls the president's birth control compromise nothing but a "shell game."

Attorney General Abbott joins us. Good evening, sir.

GREG ABBOTT, TEXAS ATTORNEY GENERAL: Good evening, Greta. Great to see you again.

VAN SUSTEREN: Nice -- nice to have you. All right, now, just so that we're clear, this is different than the health care debate over the individual mandate that's in the Supreme Court. This is a different -- a different issue. But tell me what it is and where it's filed.

ABBOTT: This is a separate lawsuit, a new lawsuit. And Greta, to put it in context, we need to remember exactly what Nancy Pelosi said two years ago. She said we need to pass "ObamaCare" to find out what's in it. And that's exactly what Americans have been finding out over the past two years, ever since the law was passed.

The newest thing that we found is this new mandate issued by the Obama administration that is violating the freedom of religion by religious institutions across the country, and it's causing a great divide, especially in the Catholic church.

What the Obama administration is now trying to do is trying to force religious institutions into providing products contrary to the religious conscience of Catholics and religious organizations across the country.

These are products that can be provided by Congress, by the administration in perfectly legal ways without trampling the religious liberties of religious organizations, but Obama is failing and refusing to do that. Instead, he's declaring war on religion here in the United States of America!

VAN SUSTEREN: All right, just so that we're clear, now, this is -- this rule came from HHS, is that right, from when they wrote the rules from the health care bill that -- about the contraception, which -- and no one at -- at HHS was elected by the people.

In fact, the people elected Congress who passed the health care bill, and Congress essentially just outsourced it to somebody else, as routinely is done, right? That -- that's always my complaint is the people who are doing this aren't even the elected officials.

ABBOTT: Well, Greta, that's an incredibly important point. And again, going back in time, even many of the Democrats who voted for the "ObamaCare" bill that led to this regulation being issued by HHS, they voted with it with the understanding that this would not infringe upon religious organizations and that religious organizations would be exempted, only to learn now, with this new mandate, that the promise that Obama and Nancy Pelosi provided to them that religious organizations would not be trampled on -- that promise has not come true. In fact, it's been violated.

VAN SUSTEREN: Well, I'd just say it's sort of -- not funny, but I've never liked the idea that non-elected officials make such sweeping decisions for the country, regardless of what it is.

All right, now, there are seven states that have filed in your case -- that are part of it in the -- in your case. Where are the other, I don't know, about 19 or so that were part of the health care mandate? Are they going to be joining with you, do you think?

ABBOTT: Right. You may recall that when we filed the original "ObamaCare" lawsuit, it began with 13 states and then grew to 26 states. Here we've started with 7 states. This is something that was put together in a very quick fashion after the mandate and after Obama promised that he would correct the mandate, which he never really did.

And so we put this together real quick over the last couple of weeks with the leadership of the great attorney general from Nebraska. And we put together seven states, and just like with the original "ObamaCare" lawsuit, we expect the number of states to join in this lawsuit to grow.

VAN SUSTEREN: All right, and just to go back to the health care for a second, the mandate one, I assume that your guess is as good as mine, but that there will be a decision by the end of the Supreme Court term, which will be the end of June. So we'll know whether the individual mandate is unconstitutional or not. And someday, you and I should have a segment talking about the severability clause that's not in that and which is going to have a profound impact.

But by the end of June, do you think we'll know on the mandate?

ABBOTT: We will. And see, that does relate to this lawsuit. The oral arguments in the "ObamaCare" will be the last week of March. The decision will come out the last week of June. And here's the deal. If "ObamaCare" is stricken down in toto, that means that it will -- it will basically moot this new lawsuit that we just filed.

If, however, the individual mandate component of the "ObamaCare" lawsuit is severed out from the remainder of "ObamaCare" and the remainder of "ObamaCare" is allowed to progress on, we will need to press on with this lawsuit that we filed this week.

VAN SUSTEREN: All right, but here's the interesting thing. There is usually a severability clause written into a law, so that that can happen, that a part can be carved out and declared unconstitutional. That's not in this, which -- I mean, I -- which I assume would be part of the litigation. But that's the most fascinating thing is that Congress forgot to put that or deliberately didn't put that clause in. And that may come -- turn out to be very important. But we'll see.

Attorney general, thank you. I'm taking the last word on that one. Thank you, sir.

ABBOTT: Thank you, Greta.